Kingdom Come
Looks like I picked the wrong week to stop sniffing vacation. I took a couple weeks off from NextDraft only to return to find American democracy on the brink. At this point, it’s no surprise that the Supreme Court was going to use all the time possible to delay a decision (and hence, the case against Trump) in the presidential immunity case. But it is surprising, even by this Court’s standards, how far the majority was willing to go toward turning our president into a king. Today the Court issued something of a split decision. Split in the sense that it offered a hell of a lot of immunity but not total immunity. From Chief Justice John Roberts: “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. The President enjoys no immunity for his unofficial acts, and not everything the President does is official.” And split in the sense we now have the era of American democracy before this decision and the era that now begins after it. On a practical level, this decision sends things back to the DC court for a series of arguments on which Trump actions were official and which weren’t. That will clearly delay things well beyond the November election. For the deeper level, I’ll leave it to the dissenting opinions from Justices Sonia Sotomayor and Ketanji Brown Jackson. Sotomayor: “The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military dissenting coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.” Jackson: “The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all oursakes, I hope that they are right. In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.” While the immunity case started as an almost ridiculous reach by Trump to avoid being held to account for his horrifically anti American actions, this decision has turned it into something even larger. Indeed, I’d advise you to focus less on what the SCOTUS immunity ruling means for the crimes of the last Trump administration and more on what it could mean for the crimes of a possible next one.
+ “Today’s ruling is especially significant in light of Friday’s decision overruling Chevron, because it means that even old agency rules can be challenged anew so long as they produce any contemporary harm. In other words, even understandings of agency authority that are a half-century old can now be challenged on the ground that some recent agency action, however minor, has injured a plaintiff.” Another massive pair of rulings from the Court creates an existential crisis when it comes to the ability of federal agencies to set regulations. And those regulations are a big deal. How the Supreme Court’s massive Chevron decision will affect climate policy. Justice Jackson: “The tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government.” That, of course, is precisely the goal of the current Court’s majority.
